Muller v. Gpo , 809 F.3d 1375 ( 2016 )


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  •   United States Court of Appeals
    for the Federal Circuit
    ______________________
    RAYMOND MULLER,
    Petitioner
    v.
    GOVERNMENT PRINTING OFFICE,
    Respondent
    ______________________
    2015-3032
    ______________________
    Petition for review of an arbitrator’s decision in Case
    No. 14-54839 by Arbitrator Marvin J. Feldman.
    ______________________
    Decided: January 15, 2016
    ______________________
    JOHNNIE ALLEN LANDON, JR., Johnnie Landon, Es-
    quire, Washington, DC, argued for petitioner.
    MELISSA M. DEVINE, Commercial Litigation Branch,
    Civil Division, United States Department of Justice,
    Washington, DC, argued for respondent. Also represented
    by EMMA BOND, BENJAMIN C. MIZER, ROBERT E.
    KIRCHMAN, JR., REGINALD T. BLADES, JR.
    ______________________
    2                                            MULLER   v. GPO
    Before PROST, Chief Judge, DYK, and STOLL, Circuit
    Judges.
    Opinion for the court filed by Circuit Judge DYK.
    Concurring opinion filed by Chief Judge PROST.
    DYK, Circuit Judge.
    Raymond Muller filed a grievance against his employ-
    er, the Government Printing Office, which was referred to
    an arbitrator pursuant to a collective bargaining agree-
    ment. The arbitrator dismissed the grievance as “not
    arbitrable,” on the ground that a four-month deadline for
    holding a hearing, required by the agreement, had passed.
    We conclude that the arbitrator erred; the contractual
    provision does not require dismissal of the grievance in
    the event of noncompliance with the four-month deadline.
    The deadline is merely a nonbinding housekeeping rule to
    encourage timely arbitration, one that is addressed to the
    arbitrator as well as the parties. There is no past practice
    requiring dismissal under the circumstances of this case.
    We accordingly reverse and remand with instructions to
    address Mr. Muller’s grievance on the merits.
    BACKGROUND
    Mr. Muller is an employee of the U.S. Government
    Printing Office (“GPO” or “agency”) and a member of the
    International Brotherhood of Teamsters, Local 713-S
    union (“union”), which belongs to the Joint Council of
    Unions. The Joint Council of Unions and GPO are signa-
    tories to a collective bargaining agreement, a multi-party
    Master Labor Management Agreement (“master agree-
    ment”), which creates a negotiated grievance procedure
    for GPO employees to contest adverse employment actions
    as an alternative to appeal to the Merit Systems Protec-
    tion Board (“MSPB”). The master agreement specifies
    that resolution of adverse employment actions under the
    MULLER   v. GPO                                            3
    negotiated procedure can proceed to arbitration if not
    resolved at the agency level.
    Article VII of the master agreement sets forth various
    rules for the arbitration process. Section 10.d.(1) of the
    master agreement stipulates that, “[i]f the grievance is
    not resolved [at the agency level] . . . the union may
    inform the Director, Labor and Employee Relations
    Service of its decision to proceed to arbitration.” J.A. 42.
    Arbitration must be invoked within 30 days: “This written
    statement must be submitted to the Director within 30
    days after the decision of the Joint Grievance Committee”
    of agency and union officials. J.A. 42. Sections 10.d.(2)
    and (3) establish the rules of arbitrator selection, includ-
    ing the possibility that either the union or the agency may
    begin the arbitrator selection process and that the Feder-
    al Mediation and Conciliation Service (“FMCS”) can step
    in if the process stalls. J.A. 42–43. Section 10.d.(4) states
    that “[t]he arbitration hearing will take place within 4
    months after filing of the notice of decision to proceed to
    arbitration, unless the parties mutually agree to an
    extension of the time limit.” J.A. 43. Section 11.e speci-
    fies that “[a]n arbitrator will render his decision as quick-
    ly as possible, but not later than 30 calendar days after
    the close of the record.” J.A. 43.
    Mr. Muller was reassigned between divisions of the
    GPO, resulting in demotion to a lower grade and a reduc-
    tion in pay, an adverse employment action under 
    5 U.S.C. § 7512
    . Mr. Muller elected to challenge his reassignment
    through the negotiated grievance procedure, and, after
    proceeding through the steps of review required by the
    master agreement, the agency issued a decision denying
    the grievance. The union timely invoked arbitration on
    February 19, 2014, and requested and received a list of
    arbitrators from the FMCS on April 2, 2014. The union
    and the GPO jointly selected Marvin Feldman as arbitra-
    tor, and Mr. Feldman was notified of his selection on May
    4                                             MULLER   v. GPO
    29, 2014. The arbitrator thus received the case approxi-
    mately three weeks prior to June 19, 2014, the date on
    which the four-month deadline expired. The arbitrator
    wrote the union and the agency on June 9, 2014, to sug-
    gest the hearing be held July 23 or August 6, 2014.
    On June 19, 2014, four months to the day from the
    date that arbitration had been invoked, the GPO wrote to
    the union and the arbitrator to ask that the arbitration be
    closed for failure to comply with the four-month deadline.
    The arbitrator requested briefs from both sides on the
    question of arbitrability and ultimately issued a decision
    on September 15, 2014, dismissing Mr. Muller’s grievance
    as “not arbitrable,” J.A. 7, because the master agreement
    “requires that the arbitration hearing take place within
    four months after filing of the notice of decision to proceed
    to arbitration, unless the parties mutually agree to an
    extension of that time limit,” J.A. 5. The arbitrator
    concluded that noncompliance with the four-month hear-
    ing deadline automatically terminated the grievance but,
    at the same time, found that the union was primarily
    responsible for the delay. “[T]here is ample evidence in
    the record, although none is required contractually, that
    the union, not FMCS, was the direct and primary cause
    for the failure of the parties to meet the four-month
    requirement.” J.A. 6.
    Mr. Muller petitions for review, arguing that the arbi-
    trator’s decision to close arbitration and dismiss the
    grievance was arbitrary, capricious, and an abuse of
    discretion, and was not supported by substantial evi-
    dence. Mr. Muller requests that the arbitrator’s decision
    be set aside.     We have jurisdiction under 
    5 U.S.C. §§ 7121
    (f) and 7703(b)(1) and 
    28 U.S.C. § 1295
    (a)(9).
    MULLER   v. GPO                                            5
    DISCUSSION
    I
    Under 
    5 U.S.C. § 7121
    (e)(1), part of the Civil Service
    Reform Act of 1978 (“CSRA”), a federal employee seeking
    to challenge disciplinary action by his employing agency
    may appeal his claim to the MSPB or, alternatively, take
    his claim to an independent arbitrator under a negotiated
    grievance procedure created by collective bargaining
    agreement. The arbitrator’s decision is reviewed by this
    court under 
    5 U.S.C. § 7121
    (f). Section 7121(f) establishes
    that arbitrations of such grievances are reviewed under
    the same standard of review that applies to appeals from
    decisions of the MSPB. The statute provides that, “[i]n
    matters covered under sections 4303 and 7512 of this title
    which have been raised under the negotiated grievance
    procedure in accordance with this section, section 7703 of
    this title . . . shall apply to the award of an arbitrator in
    the same manner and under the same conditions as if the
    matter had been decided by the Board.” 
    5 U.S.C. § 7121
    (f);
    see also Cornelius v. Nutt, 
    472 U.S. 648
    , 661 n.16 (1985);
    Newman v. Corrado, 
    897 F.2d 1579
    , 1582 (Fed. Cir. 1990).
    Mr. Muller’s claim arises under § 7512, as it concerns a
    reduction in grade and a reduction in pay, so § 7703
    applies here. 
    5 U.S.C. § 7512
    (3), (4).
    Section 7703(c) requires this court to set aside “any
    agency action, findings, or conclusions found to be (1)
    arbitrary, capricious, an abuse of discretion, or otherwise
    not in accordance with law; (2) obtained without proce-
    dures required by law, rule, or regulation having been
    followed; or (3) unsupported by substantial evidence.”
    
    5 U.S.C. § 7703
    (c); see also Appleberry v. Dep’t of Home-
    land Sec., 
    793 F.3d 1291
    , 1295 (Fed. Cir. 2015). The
    standard of review under § 7703 differs from the standard
    that applies to arbitrations conducted under the Federal
    Arbitration Act, 
    9 U.S.C. § 1
     et seq., where an arbitrator’s
    6                                              MULLER   v. GPO
    decision can be set aside only under narrow circumstanc-
    es, such as corruption or misconduct on the part of the
    arbitrator. 
    9 U.S.C. § 10
    (a); see also Hall Street Assocs.,
    L.L.C. v. Mattel, Inc., 
    552 U.S. 576
    , 584–85 (2008); First
    Options of Chi., Inc. v. Kaplan, 
    514 U.S. 938
    , 943 (1995).
    This difference, with substantially less deference granted
    to arbitrations of the grievances of federal employees, is
    consistent with the purpose of the CSRA, which created
    arbitration defined by collective bargaining agreement as
    a parallel alternative to dispute resolution at the MSPB.
    “Congress clearly intended that an arbitrator would apply
    the same substantive rules as the Board does in reviewing
    an agency disciplinary decision.” Cornelius, 
    472 U.S. at 660
    .
    The CSRA makes clear that employees and their un-
    ions are obliged to invoke arbitration promptly, or their
    claims are forfeited. See, e.g., 
    5 U.S.C. § 7121
    (e)(1) (“An
    employee shall be deemed to have exercised his option
    under this subsection to raise a matter . . . under the
    negotiated grievance procedure at such time as the em-
    ployee . . . timely files a grievance in writing in accordance
    with the provisions of the parties’ negotiated grievance
    procedure . . . .”) (emphasis added). As the government
    points out, failure to comply with the deadline for invok-
    ing arbitration can result in dismissal of an employee’s
    grievance. In Appleberry, we upheld an arbitrator’s
    dismissal of a federal employee’s claim because it “was not
    properly ‘raised under the negotiated grievance procedure’
    in the first place,” 793 F.3d at 1297, the employee having
    failed to invoke arbitration within 30 days of the agency’s
    denial of her grievance, as required by the controlling
    collective bargaining agreement, id. at 1294.
    However, the CSRA does not itself create any statuto-
    ry timing requirements that apply after arbitration has
    been invoked. Instead, arbitration of grievances is al-
    lowed to proceed under a timetable and procedural rules
    MULLER   v. GPO                                              7
    set by the governing collective bargaining agreement. We
    have noted that “[c]ourts should be careful not to ‘judicial-
    ize’ the arbitration process. Arbitration normally envi-
    sions that each case be decided on its own under the
    controlling contract . . . .” Gonce v. Veterans Admin.,
    
    872 F.2d 995
    , 998 (Fed. Cir. 1989). “The collective bar-
    gaining agreement is the primary tool used in the arbitra-
    tion process.” Gunn v. Veterans Admin., 
    892 F.2d 1036
    ,
    1038 (Fed. Cir. 1990). It is therefore up to the negotiating
    parties to impose any internal deadlines on the arbitra-
    tion process.
    II
    The government notes, correctly, that “collective bar-
    gaining agreements are . . . contracts governed by the
    rules of contract interpretation.” Respondent’s Brief at 12
    (quoting Muniz v. Newman, 
    972 F.2d 1304
    , 1320 (Fed.
    Cir. 1992)). “Interpretation of a collective-bargaining
    agreement is a question of law we review de novo.” Gar-
    cia v. Dep’t of Homeland Sec., 
    780 F.3d 1145
    , 1147 (Fed.
    Cir. 2015); see also Huey v. Dep’t of Health & Human
    Servs., 
    782 F.2d 1575
    , 1577 (Fed. Cir. 1986) (“It is well
    settled that the interpretation of a[] [collective bargain-
    ing] agreement is for the court.”). We conclude that
    noncompliance with the four-month deadline in Sec-
    tion 10.d.(4) of Article VII of the master agreement does
    not require dismissal of the arbitration.
    First, Section 10.d.(4) is not directed specifically to the
    union; it is not within the union’s power to ensure compli-
    ance with the four-month deadline; and the provision does
    not specify dismissal as a sanction for failure to comply
    with the deadline. As an initial matter, the master
    agreement does establish at least one deadline that is
    clearly directed to, and binding on, the union. Consistent
    with 
    5 U.S.C. § 7121
    (e)(1), the master agreement creates
    a 30-day deadline for invoking arbitration via written
    8                                              MULLER   v. GPO
    notice. Section 10.d.(1) of Article VII of the agreement
    specifies,
    If the grievance is not resolved at Step 3 or there
    is no response in the time limit set forth above,
    the union may inform the Director, Labor and
    Employee Relations Service of its decision to pro-
    ceed to arbitration. This written statement must
    be submitted to the Director within 30 days after
    the decision of the Joint Grievance Committee.
    J.A. 42.
    However, subsequent arbitration steps recited in the
    master agreement either impose no deadlines or the
    deadlines (as with the four-month deadline) are not
    directed to the union alone. Sections 10.d.(2) and (3) of
    Article VII of the agreement, which follow Sec-
    tion 10.d.(1), establish the rules for selecting an arbitrator
    but do not include any time limits. J.A. 42–43. Sec-
    tion 10.d.(4) of Article VII next provides that, once an
    arbitrator has been selected, “[t]he arbitration hearing
    will take place within 4 months after filing of the notice of
    decision to proceed to arbitration, unless the parties
    mutually agree to an extension of the time limit.” J.A. 43.
    This deadline is not directed solely to the union but to the
    parties collectively as well as to the arbitrator. Sec-
    tion 11.e of Article VII later provides that “[a]n arbitrator
    will render his decision as quickly as possible, but not
    later than 30 calendar days after the close of the record,”
    a deadline directed to the arbitrator alone. J.A. 43.
    The arbitrator found, and the government now ar-
    gues, that the four-month hearing deadline of Sec-
    tion 10.d.(4) binds the union. However, the four-month
    deadline, which immediately follows the provisions of the
    master agreement concerning selection of the arbitrator,
    is clearly addressed to all three actors, not to the union
    alone. Section 10.d.(4) indicates that once an arbitrator
    MULLER   v. GPO                                           9
    has been selected, pursuant to Section 10.d.(3), the arbi-
    trator, union, and agency should work together to sched-
    ule a hearing. Unlike the 30-day deadline for invoking
    arbitration, compliance with which is entirely within the
    union’s control, the union cannot unilaterally ensure that
    a hearing is held within four months. Indeed, under the
    arbitrator’s approach, even delay occasioned entirely by
    the government would result in dismissal of an employ-
    ee’s grievance.
    Both the four-month hearing deadline of Sec-
    tion 10.d.(4) and the 30-day arbitration decision deadline
    of Section 11.e are, on their face, provisions to encourage
    prompt handling of the grievance. Neither contractual
    provision stipulates any consequences for the union or the
    agency in the event of noncompliance with these dead-
    lines, and indeed Section 10.d.(4) expressly contemplates
    the possibility of the parties’ agreeing to extend the four-
    month deadline.
    The government argues that, in fact, Section 9 of Arti-
    cle VII of the master agreement creates consequences for
    the union if the time limits of Section 10 are not met.
    Section 9 reads, in full,
    Expeditious Handling. The parties agree that they
    will handle grievances in an expeditious manner
    and abide by the time limits set forth in this
    agreement. If these time limits are not met, the
    grievance will move to the next step as provided
    in Section 10 of this Article.
    J.A. 42. Section 9 adds precatory language encouraging
    the parties to proceed “in an expeditious manner and
    abide by the time limits,” and states that failure to meet a
    deadline will result in the grievance moving to the next
    step. The only next step after a hearing is the decision by
    the arbitrator. It is nonsensical, and the government does
    10                                           MULLER   v. GPO
    not argue, that failure to meet the four-month deadline
    should result in a decision without a hearing.
    The government conceded at oral argument that the
    30-day decision deadline of Section 11.e is merely a goal
    for the arbitrator, triggering no consequences for noncom-
    pliance, and that an arbitrator’s delay in issuing a deci-
    sion would not prejudice an employee’s claim. The
    government, and the arbitrator’s decision, offer no expla-
    nation why the four-month hearing deadline should be
    treated any differently. Neither deadline is within the
    union’s unilateral control, and the master agreement
    specifies no consequences for noncompliance with either.
    As the government notes, our court has upheld arbi-
    trators’ dismissals of employee grievances when the
    employee, or his union, failed to comply with internal
    deadlines imposed on him by the collective bargaining
    agreement, but in these cases the relevant contractual
    deadlines were specifically directed to the union. In
    Gonce, we affirmed an arbitrator’s dismissal of two feder-
    al employees’ claims because the union failed to comply
    with a requirement in the collective bargaining agree-
    ment that “the moving party . . . request the Federal
    Mediation and Conciliation Service to provide a list of
    seven (7) impartial persons to act as an arbitrator.”
    
    872 F.2d at 996
     (alteration in original). The Gonce court
    noted that “it was the union’s responsibility to request the
    panel of arbitrators ‘on or after the date of the notice of
    arbitration’ so as to secure ‘prompt and equitable resolu-
    tion of grievances,’ but it waited seventeen months before
    it did.” 
    Id. at 999
    . Gonce noted further that the govern-
    ing collective bargaining agreement specified “strict time
    limits on earlier steps of the grievance procedure no
    longer than forty-five days.” Id.; see also Gunn, 
    892 F.2d at 1038
     (assuming that noncompliance with an arbitrator
    selection deadline directed to the union (as moving party)
    MULLER   v. GPO                                          11
    would have forfeited an employee’s grievance, absent
    waiver by the agency).
    In Herrera v. Department of Homeland Security, we
    upheld the MSPB’s affirmance of an arbitrator’s dismissal
    of an employee’s grievance due to the union’s noncompli-
    ance with an “obligation to cooperate promptly with the
    designated arbitrator in setting a date for a hearing” and
    “for failing to proceed with due diligence in setting a
    hearing date pursuant to the [collective bargaining
    agreement].” 498 F. App’x 35, 38 (Fed. Cir. 2012). In
    Herrera, the union asked for and received an extension of
    time to schedule an arbitration hearing date but then
    failed to respond by that extended deadline. 
    Id.
     Unlike
    the master agreement at issue here, the controlling collec-
    tive bargaining agreement in Herrera expressly provided
    that noncompliance with the arbitration timetable could
    lead to dismissal of the grievance: “Failure of either party
    to proceed with due diligence in responding to an offer of
    dates may serve as a basis for establishment of a hearing
    date by the arbitrator or dismissal of the grievance.” 
    Id.
    The case at hand is similar to Stevens v. Department
    of the Air Force. 395 F. App’x 679 (Fed. Cir. 2010). In
    Stevens, a collective bargaining agreement governing
    resolution of Air Force employee grievances specified that
    the agency would “strive to effect disciplinary action
    within . . . 45 days of the offense” but defined no conse-
    quences for noncompliance. Id. at 681, 682. Our court
    affirmed a finding by the MSPB that the 45-day decision
    deadline merely “articulated a goal, rather than a manda-
    tory time limit.” Id. at 682. We concluded that such a
    deadline is “best read as a housekeeping requirement that
    is not judicially enforceable.” Id. (quoting Timken U.S.
    Corp. v. United States, 
    421 F.3d 1350
    , 1357 (Fed. Cir.
    2005)).
    12                                           MULLER   v. GPO
    Here, as in Stevens, the deadline is a goal, not a re-
    quirement, and the master agreement specifies no conse-
    quence for failure to observe the four-month deadline.
    The provision is thus merely a housekeeping rule. Of
    course, the parties are free to contract into binding dead-
    lines that guarantee prompt dispute resolution, if they so
    desire. But they did not. Here there is nothing in the text
    of the master agreement to indicate that the GPO or the
    union intended noncompliance with the four-month
    hearing deadline to lead to automatic dismissal of
    Mr. Muller’s grievance. 1
    1  The government suggests that without an auto-
    matic dismissal rule, there would be no way to prevent
    the union from unduly delaying the proceeding. However,
    other provisions of the master agreement operate to
    ensure diligence. First, as noted above, the union must
    invoke arbitration within 30 days of a decision by the
    Joint Grievance Committee or forfeit the grievance.
    Second, if the union were to invoke arbitration on time
    but fail to initiate arbitrator selection, the agreement
    specifies that the agency has the authority to do so. J.A.
    42 (Section 10.d.(2)). Third, if the union were to fail to
    participate in the strike process for arbitrator selection,
    “the FMCS will be empowered to select” an arbitrator.
    J.A. 43 (Section 10.d.(3)). The FMCS has that power “[i]f
    either party refuses to take part in selecting an arbitra-
    tor.” 
    Id.
    Moreover, an arbitrator, once selected, has inherent
    authority to create a timetable for arbitration and conse-
    quences for noncompliance therewith (limited, of course,
    by the precise terms of the controlling collective bargain-
    ing agreement). See, e.g., Uliano v. Ctrs. for Medicare &
    Medicaid Servs., 185 F. App’x 967, 970 (Fed. Cir. 2006)
    (affirming an arbitrator’s dismissal of an agency employ-
    MULLER   v. GPO                                           13
    There is therefore no basis in the text of the master
    agreement to support the arbitrator’s conclusion that
    noncompliance with the four-month hearing deadline
    automatically invalidated Mr. Muller’s claim. The arbi-
    trator was wrong to conclude that “the plain language of
    the contractual provision” obliged him to terminate the
    arbitration. J.A. 7.
    III
    Second, there is no past practice between the parties
    suggesting that the agreement should be interpreted to
    require dismissal for failure to comply with the deadline
    when the matter was submitted to the arbitrator in time
    for a hearing to be held within the four-month period.
    The arbitrator found, and the government now argues,
    that past practice of the GPO should lead to an interpre-
    tation of the master agreement under which failure to
    comply with the four-month deadline requires dismissal.
    It is true that past practices can supplement a collec-
    tive bargaining agreement. The Supreme Court has
    noted that “[t]he labor arbitrator’s source of law is not
    confined to the express provisions of the contract, as the
    industrial common law—the practices of the industry and
    the shop—is equally a part of the collective bargaining
    ee’s grievance in view of the employee’s failure to appear
    at an arbitration hearing and noting that “[t]he Supreme
    Court has recognized the inherent power of a decision
    maker to dismiss a case for failure to prosecute”) (citing
    Chambers v. NASCO, 
    501 U.S. 32
    , 49 (1991)); Forsythe
    Int’l, S.A. v. Gibbs Oil Co. of Tex., 
    915 F.2d 1017
    , 1023 n.8
    (5th Cir. 1990) (“Arbitrators may, for example, devise
    appropriate sanctions for abuse of the arbitration pro-
    cess.”); cf. 
    5 C.F.R. § 1201.43
    (b) (granting the MSPB
    authority to dismiss an appeal for failure to prosecute).
    14                                           MULLER   v. GPO
    agreement although not expressed in it.” United Steel-
    workers of Am. v. Warrior & Gulf Navigation Co.,
    
    363 U.S. 574
    , 581–82 (1960); see also Cruz-Martinez v.
    Dep’t of Homeland Sec., 
    410 F.3d 1366
    , 1370 (Fed. Cir.
    2005). In Cruz-Martinez we upheld an arbitrator’s dis-
    missal of an employee grievance because his union waited
    longer than a year after invoking arbitration to request
    an arbitrator and schedule a hearing, in violation of an
    established practice of the parties. 
    410 F.3d at 1367, 1372
    . We found that the past practice there created a
    binding, consequential deadline even in the absence of
    express language in the collective bargaining agreement.
    
    Id. at 1370
    . “Clear and long-standing practices of the
    parties—in other words, ‘past practices’—can establish
    terms of the agreement that are as binding as any specific
    written provision.” 
    Id.
     “The arbitrator’s reliance on the
    sixteen years of the union’s acquiescence in the past
    practice is substantial evidence supporting the arbitra-
    tor’s decision” to dismiss the employee’s claim. 
    Id.
    The past practice evidence in the record here consists
    of eight letters from the GPO to the union dismissing
    grievances because no arbitration hearing had been held
    within four months of invocation of arbitration. In each of
    the letters, the agency sought to dismiss a grievance
    because the union had failed to select an arbitrator within
    the four-month window. The letters therefore evidence an
    established practice of closing arbitration when the union
    was not diligent in selecting an arbitrator before the four-
    month deadline.
    Mr. Muller’s situation is different. Even if the union
    were dilatory up to the point that the arbitrator was
    selected, there is no question that Mr. Muller’s grievance
    was submitted to the arbitrator in sufficient time to
    schedule and conduct a hearing within four months. The
    GPO and the union jointly selected Mr. Feldman as
    arbitrator in April of 2014, and the union informed FMCS
    MULLER   v. GPO                                        15
    of the selection on May 9. FMCS notified the arbitrator of
    his selection on May 29, three weeks prior to the four-
    month deadline of June 19, 2014. At oral argument,
    Mr. Muller’s counsel indicated that the hearing would
    likely have taken a few days, and the government conced-
    ed that the hearing could have been held within the three
    week period. Unlike the eight letters cited by the gov-
    ernment, here the union succeeded in getting the griev-
    ance into the arbitrator’s hands within the four-month
    limit. At that point, under the terms of Section 10.d.(4),
    the duty to proceed diligently to hearing was not the
    union’s alone but was instead shared among the arbitra-
    tor, the agency, and the union.
    As the government conceded at argument, there is no
    evidence in the record of past practice germane to the
    situation here, where an arbitrator was timely selected
    and the case was in his hands comfortably before the four-
    month deadline. There is accordingly no basis in past
    practice to support dismissal of Mr. Muller’s claim.
    IV
    In view of the plain language of the master agreement
    and the absence of any pertinent past practice evidence,
    we find that the arbitrator’s dismissal of Mr. Muller’s
    claim was contrary to the collective bargaining agree-
    ment. The case is remanded for a determination of the
    merits of Mr. Muller’s grievance. Given that Mr. Feldman
    has withdrawn from the case for medical reasons, the
    parties must select a new arbitrator under the terms of
    their agreement.
    REVERSED AND REMANDED
    COSTS
    Costs to petitioner.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    RAYMOND MULLER,
    Petitioner
    v.
    GOVERNMENT PRINTING OFFICE,
    Respondent
    ______________________
    2015-3032
    ______________________
    Petition for review of an arbitrator's decision in No.
    14-54839 by Marvin J. Feldman.
    ______________________
    PROST, Chief Judge, concurring.
    I join the majority opinion in the result based on the
    facts and circumstances of this case and in its reasoning
    with respect to Part III. I respectfully disagree, however,
    that in all circumstances, the provisions of the Master
    Labor Management Agreement (“master agreement”) at
    issue should be construed as having no consequences for
    the parties here. I agree that in the absence of clear past
    practice, we must look to the text of the master agreement
    and surrounding circumstances to determine the conse-
    quences for failure to comply with the deadlines imposed
    by the master agreement.
    As the majority notes, the master agreement does not
    explicitly provide that non-compliance with the deadlines
    2                                            MULLER   v. GPO
    imposed in Section 10 could lead to the dismissal of the
    grievance. However, I respectfully disagree that in the
    absence of an established prior course of conduct, the lack
    of an explicit consequence for noncompliance requires that
    the deadline is a mere “housekeeping rule.” Majority Op.
    at 12. Rather, we should look to the facts and circum-
    stances surrounding the delay and the party or parties
    who may control compliance with the stated deadlines.
    Here, the union was not the sole cause of delay. The
    grievance was submitted to the arbitrator in sufficient
    time to complete the hearing before the four month dead-
    line in the master agreement. From the time the matter
    was submitted, scheduling was jointly controlled by the
    arbitrator, the agency, and the union. Because the union
    could not unilaterally ensure that the hearing took place
    in time under these circumstances, it should also not be
    penalized for the failure. However, in cases where the
    delay can be solely attributed to a single party, then it
    would be appropriate to enforce the deadlines present in
    the master agreement against the party responsible.
    Accordingly, like the majority, I would reverse the ar-
    bitrator’s decision and remand the case to address the
    merits, but on the basis that the union was not the sole
    cause for the delay.